Table of Contents CHAPTER 1. GENERAL EXPLANATION AND BRIEF HISTORY OF THE LOW-INCOME HOUSING TAX CREDIT 1:1 Overview 1:2 Brief history 1:3 Prior law 1:4 Tax Reform Act of 1986 1:5 Technical corrections 1:6 Omnibus Budget Reconciliation Act of 1989 1:7 Omnibus Budget Reconciliation Act of 1990 1:8 Tax Extension Act of 1991 1:9 The Omnibus Budget Reconciliation Act of 1993 1:10 Public Law 106-554 1:11 How permanent is the LIHTC? 1:12 Significant events in 2001-2002 1:13 Temporary LIHTC provisions providing for hurricane relief 1:14 Congressional activity in 2008 1:15 The Housing and Economic Recovery Act of 2008 1:16 Emergency Economic Stabilization Act of 2008 1:17 American Recovery and Reinvestment Act of 2009 1:18 Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 1:19 American Taxpayer Relief Act of 2012 1:20 Tax Increase Prevention Act of 2014 1:21 Protecting Americans From Tax Hikes Act of 2015 1:22 An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018 1:23 General economics CHAPTER 2. TAXPAYERS WHO CAN USE THE CREDIT 2:1 General rules 2:2 Taxpayers with passive income 2:3 Individual investors 2:4 How individual investors use the LIHTC 2:5 General rental real estate exception 2:6 Special LIHTC treatment 2:7 Real estate trade or business exception 2:8 Primary attractions for individual investors 2:9 Additional tax on minors 2:10 Real estate investment 2:11 Senior housing 2:12 Corporate investors 2:13 How corporations use the LIHTC 2:14 S corporations 2:15 Personal service corporations 2:16 Closely held C corporations 2:17 Widely held corporations 2:18 The consolidated method xiii
LOW-INCOME HOUSING TAX CREDIT HANDBOOK 2:19 The equity method 2:20 The cost method 2:21 Accounting for LIHTC Investments 2:22 Consolidation 2:23 Summary 2:24 Materiality 2:25 Primary attractions for corporate investors 2:26 Helping satisfy local housing needs 2:27 Public relations 2:28 Community Reinvestment Act 2:29 Equity investments 2:30 Mollify political concerns 2:31 Employee compensation 2:32 Corporate investor concerns 2:33 Help lenders understand the LIHTC 2:34 Tax-exempt entities 2:35 Unrelated business income tax 2:36 Mechanics 2:37 Interaction with the LIHTC 2:38 Plan asset regulations 2:39 Equity versus debt 2:40 Exceptions 2:41 Estates and trusts 2:42 Using intermediaries 2:43 LIHTC broker 2:44 Private sponsor 2:45 Public sponsor 2:46 Nonprofit participation General 2:47 Specific 2:48 Nonprofit safe harbor 2:49 Safe harbor guideline 2:50 Low-income occupancy percentage and the safe harbor guideline 2:51 Applying the guideline 2:52 Is your tax-exempt exempt from tax? 2:53 IRS Guidance on Guarantees and Indemnifications CHAPTER 3. TECHNICAL INCOME TAX ASPECTS OF THE CREDIT 3:1 Technical overview 3:2 Qualified low-income building 3:3 Qualified low-income housing development 3:4 20/50 test 3:5 40/60 test 3:6 Special New York City test 3:7 State specific agreement 3:8 Residential rental property test 3:9 Tax-exempt bond financing regulations 3:10 Tenant equity contributions 3:11 Types of housing 3:12 Assisted living facilities 3:13 Rent-restricted test xiv
TABLE OF CONTENTS 3:14 Limitation of 30 percent 3:15 Rent definitions 3:16 Gross rent General 3:17 Gross rent floor 3:18 Exclusions 3:19 Utility allowances 3:20 Supplemental Security Income 3:21 Services/Meals 3:22 Tenant income 3:23 Area median gross income 3:24 Changes in tenant/area income 3:25 Exceptions to the rule: Understanding the significance of rebenchmarking HUD s income limit data 3:26 Changes in tenant/area income General rule 3:27 Deep rent skewing election 3:28 Section 8/LIHTC conflict 3:29 Vacant units 3:30 Time for satisfying the minimum set-aside requirement 3:31 Qualified low-income housing project Scattered site developments 3:32 Qualified low-income housing development Miscellaneous items 3:33 Election to exclude buildings 3:34 Students 3:35 Rights of first refusal 3:36 Qualified basis 3:37 Low-income occupancy percentage 3:38 Unit fraction (low-income units/total units) 3:39 Floor-space fraction (total floor space of low-income units/total floor space) 3:40 First year rule 3:41 Low-income unit 3:42 Rent-restricted 3:43 Income limitation 3:44 Nontransient occupancy 3:45 Suitable for occupancy 3:46 General public 3:47 Special rule Four or fewer units 3:48 Factory-made housing 3:49 Special use rental housing 3:50 Manager s unit 3:51 Community service facilities and community outreach facilities 3:52 Supportive services for homeless 3:53 Owner-occupied buildings 3:54 Difficult to develop areas/qualified census tracts/state housing credit agency designation 3:55 Difficult to develop areas/qualified census tracts Qualified census tracts 3:56 Difficult development areas 3:57 Application of caps to qualified census tract and difficult development area determinations 3:58 Eligible basis 3:59 General rule 3:60 Land costs and site preparation xv
LOW-INCOME HOUSING TAX CREDIT HANDBOOK 3:61 What is depreciable basis? 3:62 What is depreciable basis Environmental costs 3:63 Infrastructure and offsite improvements 3:64 Site preparation and landscaping 3:65 Rough grading 3:66 Utility costs 3:67 Impact fees 3:68 Other costs 3:69 Construction period interest, property taxes and loan cost 3:70 Infrastructure costs (Off-site improvements) 3:71 Preliminary planning 3:72 Building permits 3:73 New construction 3:74 Common areas 3:75 Construction costs 3:76 Developer fees 3:77 Eligibility of developer fees 3:78 Reasonableness of developer fees 3:79 Deferred development fees 3:80 Capital contributions by the developer/general partner 3:81 Income tax treatment to the developer 3:82 Summary of costs included in eligible basis 3:83 Existing buildings 3:84 Building purchase 3:85 10-year hold 3:86 Last placed in service 3:87 Carryover basis transactions 3:88 Inheritance 3:89 Nonprofit acquisition 3:90 Foreclosure 3:91 UCC definition Real property purchase-money security interest 3:92 Other areas of the IRC Sections 108 and 1017, exclusions from income, discharge of indebtedness provisions 3:93 Congressional intent 3:94 Owner occupied use 3:95 Nonqualified substantial improvement 3:96 Federally or state-assisted building exception 3:97 Waiver exception before July 30, 2008 3:98 Waiver Exception before July 30, 2008 Eligible developments 3:99 Application procedures 3:100 Third-party placed in service 3:101 Carryover basis acquisitions 3:102 Rehabilitation of existing buildings 3:103 $6,000 per unit 3:104 Twenty-four-month period 3:105 Transfers 3:106 Substantial benefit rule 3:107 Eligible basis Interest expense capitalization 3:108 Eligible rehabilitation costs 24-month rule 3:109 Relocation payments 3:110 Structural modifications xvi
TABLE OF CONTENTS 3:111 Depreciation of buildings during rehabilitation period 3:112 Other rules 3:113 Disproportionate standard units 3:114 Mixed commercial/residential use 3:115 Community service facilities 3:116 Home businesses 3:117 Depreciation expense and debt discharge 3:118 Federal grants and other loans 3:119 IRC Section 167(k) depreciation Pre TRA 86 3:120 Tax credit application fees 3:121 Acquisition of building during compliance period 3:122 After reservation but before allocation 3:123 During construction but after allocation 3:124 After construction completed and before lease-up 3:125 Placed in service definition 3:126 Credit period definition 3:127 Increases in qualified basis 3:128 Credit percentage 3:129 Building type 3:130 Federal subsidies Pre-HERA 3:131 Post-HERA 3:132 HOME funds 3:133 Monthly credit percentage 3:134 Present value calculation 3:135 Determination of credit percentage 3:136 Binding allocation/commitment 3:137 Credit percentage election Allocated credits 3:138 Tax-exempt bond financed buildings 3:139 At-risk rules 3:140 Nonrecourse financing 3:141 Qualified commercial financing 3:142 Nonprofit lender exception 3:143 Deferred fees as financing 3:144 LIHTC reporting requirements 3:145 Initial year 3:146 Completing Form 8609 Question 8(b), multiple buildings 3:147 LIHTC reporting requirements Succeeding years 3:148 Housing agency reporting requirements 3:149 Special 1990 election 3:150 Reporting reductions in basis and recapture 3:151 Prior termination and permanent extension of the LIHTC Prior termination 3:152 Permanent extension 3:153 Tax credit expansion 3:154 Allocation of credits to states 3:155 Credit exchange under the American Recovery and Reinvestment Act of 2009 3:156 Grants or loans 3:157 Allocation cap based on population 3:158 Credit exchange under the American Recovery and Reinvestment Act of 2009 Amount and timing of subawards 3:159 Allocation cap based on population Ten percent nonprofit set-aside xvii
LOW-INCOME HOUSING TAX CREDIT HANDBOOK 3:160 Credit exchange under the American Recovery and Reinvestment Act of 2009 Disaster area and GO Zone Credits 3:161 Allocation cap based on population Allocation of the credit 3:162 Credit exchange under the American Recovery and Reinvestment Act of 2009 Eligible costs for exchange grant proceeds 3:163 Good faith efforts 3:164 Requirements for Non-LIHTC developments 3:165 Recapture of exchange program grant proceeds 3:166 Reporting and other requirements 3:167 Allocation by placed-in-service date 3:168 Binding forward commitment 3:169 Increase in qualified basis 3:170 Allocation by placed-in-service-date Allocations with 10 percent of costs incurred 3:171 Allocation by placed-in-service date Exception: Federal disaster areas 3:172 Verification of ownership and basis by agency 3:173 Credit allocation administration 3:174 Special bond financing allocation rules 3:175 State constitutional home rule subdivision 3:176 Credit amount allocation 3:177 Correction of errors 3:178 State LIHTC carryover 3:179 Credit allocation guidelines 3:180 Determination of guidelines 3:181 Disclosure of guidelines 3:182 Thirty-year extended use 3:183 Right of first refusal held by tenants 3:184 Monitoring compliance 3:185 Recordkeeping and record retention provisions 3:186 Certification and review provisions 3:187 RHA-Financed Buildings 3:188 Habitability review 3:189 Notification of noncompliance provisions 3:190 Delegation of authority 3:191 Liability and effective date 3:192 Allocation plan Intermediary costs 3:193 LIHTC investments in United States possessions and territories 3:194 Depreciation of LIHTC Properties 3:195 Restrictions on use of the credits by a taxpayer 3:196 Restrictions on use Passive activity rules 3:197 Interaction with other credits 3:198 General business credit rules 3:199 Foreign tax credits 3:200 Historic rehabilitation tax credits 3:201 Disabled access tax credits 3:202 Alternative minimum tax 3:203 Special taxes 3:204 Personal holding company tax 3:205 Accumulated earnings tax 3:206 Consolidated corporate groups 3:207 Base Erosion and Anti-Abuse Tax 3:208 Tax credit recapture xviii
TABLE OF CONTENTS 3:209 Full recapture of the LIHTC 3:210 Treatment of seller 3:211 Treatment of the buyer 3:212 Partial recapture of the LIHTC 3:213 Transfers Foreclosure 3:214 Recapture tax and interest Recapture period 3:215 Additional interest charge rules 3:216 Recapture of Section 1602 funds 3:217 Exceptions 3:218 Reasonably expected rule 3:219 Posting a bond 3:220 Pledging treasury securities 3:221 Two-thirds credit 3:222 Tax benefit rule 3:223 De minimis floor space changes 3:224 Casualty loss 3:225 Transfers on spouse s death 3:226 Transfers 3:227 General transfer 3:228 Transfer of a partnership interest 3:229 Like-kind exchanges 3:230 Miscellaneous guidance 3:231 Partnerships and the LIHTC 3:232 General rules 3:233 Allocation rules 3:234 Transactions between partner and partnership 3:235 LIHTC at-risk rules 3:236 Potential advantages of limited liability companies for low-income housing syndicators 3:237 Check-the-Box partnership determinations 3:238 Check-the-box partnership determinations Special case for certain states 3:239 Multiple buildings 3:240 Multiple building development election 3:241 Minimum set-aside test 3:242 General rule 3:243 Summary 3:244 Credit percentage 3:245 Eligible basis 3:246 Low-income occupancy percentage 3:247 State low-income housing tax credits 3:248 Additional tax issues 3:249 Tax shelter registration 3:250 Corporate tax shelters 3:251 Regulations on corporate tax shelters 3:252 Regulations on nonprofit participation in tax shelters 3:253 Profit motive 3:254 Capital recovery 3:255 Cost segregation studies 3:256 IRR calculation 3:257 Before and after comparison 3:258 Basis adjustments xix
LOW-INCOME HOUSING TAX CREDIT HANDBOOK 3:259 Below-market loans 3:260 Tax-exempt bonds 3:261 Private activity bonds 3:262 Volume cap 3:263 Arbitrage restrictions 3:264 Miscellaneous 3:265 Estates and trusts 3:266 Charitable contribution of LIHTC property at end of compliance period 3:267 Charitable contribution deduction calculation 3:268 Allocation of basis calculation 3:269 Facade easements 3:270 Large partnership rules 3:271 Changes to the recapture rules 3:272 Changes in the technical termination rules 3:273 Change in the due date for distributing schedule K-1s to partners for electing large partnerships 3:274 LIHTC 2005 provisions for relief from hurricanes Katrina, Rita and Wilma 3:275 LIHTC 2008 provisions for relief in the Midwestern disaster area and Hurricane Ike 3:276 LIHTC 2012 and 2013 compliance relief from Hurricane Sandy and from various severe storms and flooding in Missouri, North Dakota, Alabama, Vermont, Pennsylvania, New York, Iowa, Colorado and Oklahoma 3:277 TCAP funds under the American Recovery and Reinvestment Act of 2009 3:278 Impact of tax reform on LIHTC program 3:279 Reduced corporate tax rate 3:280 Limitations on business interest deductions 3:281 Expansion of bonus depreciation 3:282 Changes to alternative depreciation system lives 3:283 Elimination of treatment of nonshareholder contributions to capital as nontaxable events 3:284 Elimination of technical termination rules for partnerships 3:285 Implementation of year of inclusion requirements for income recognition 3:286 Implementation of the base erosion and anti-abuse tax CHAPTER 4. MARKET ANALYSIS AND THE APPRAISAL PROCESS FOR TAX CREDIT PROPERTIES 4:1 Overview 4:2 Analyst qualifications 4:3 Types of reports 4:4 Market study 4:5 Appraisal 4:6 Real estate appraisal uses Securing financing 4:7 Tax credit allocation 4:8 Property taxes 4:9 Partnership valuations 4:10 Valuations A conceptual overview 4:11 Components of the appraisal report 4:12 Regional, city and neighborhood descriptions 4:13 Market analysis 4:14 Property description xx
TABLE OF CONTENTS 4:15 Highest and best use 4:16 Highest and best use analysis and LIHTC properties 4:17 Valuation techniques Cost approach 4:18 Replacement and reproduction costs 4:19 Steps to the cost approach value 4:20 Cost approach with LIHTC developments 4:21 Sales comparison approach 4:22 Sales comparison among LIHTC developments 4:23 Tax credit transactions 4:24 Income capitalization approach 4:25 Economic principles affecting the income approach 4:26 Anticipation 4:27 Supply and demand 4:28 Balance 4:29 Externalities 4:30 Standard procedures for the income approach to real property value 4:31 Data gathering 4:32 Estimate gross income Confirm rental rates 4:33 Estimate other income 4:34 Estimate the vacancy rate 4:35 Estimate operating expenses 4:36 Choose a capitalization rate 4:37 Standard procedures for the income approach to tax credit value Valuing the tax credits 4:38 Not in my backyard (NIMBY) value issues 4:39 Conclusion 4:40 Market study uses 4:41 Developer uses 4:42 Syndicator uses 4:43 Tax credit investors 4:44 Tax credit allocation 4:45 Market studies A conceptual overview 4:46 Development description 4:47 Special issues for LIHTC developments 4:48 Supply analysis 4:49 Amenities 4:50 Absorption 4:51 Market rent 4:52 Future supply 4:53 Demand analysis 4:54 Demographic data and LIHTC developments 4:55 Capture rate 4:56 Penetration rate 4:57 Limitations and demographic data 4:58 An analysis of the proposed development 4:59 Conclusion CHAPTER 5. 5:1 General 5:2 Property management 5:3 Minimum set-aside tests MANAGING TAX CREDIT PROPERTIES xxi
LOW-INCOME HOUSING TAX CREDIT HANDBOOK 5:4 Multiple buildings 5:5 20/50 test 5:6 40/60 test 5:7 Monitoring 5:8 Number of residential units in the development 5:9 Income limits Area median gross income (AMGI) 5:10 MTSP 5:11 National nonmetropolitan median gross income (NNMI) Rural areas 5:12 How income limits are calculated 5:13 Household size 5:14 Unborn Children 5:15 Property management Gross rent for the unit 5:16 Rent floor election 5:17 Combining USDA and LIHTC rent limits 5:18 City sales tax paid by the tenant 5:19 Renters insurance 5:20 Utility allowance 5:21 Air conditioning 5:22 Tenant provided appliances 5:23 Approved methods 5:24 Rental assistance payments 5:25 Section 8 tenant rent greater than LIHTC rent 5:26 Supportive services 5:27 Charge for parking, garages, storage, etc. 5:28 Parking charge flow chart 5:29 Number of tenants in unit Rent 5:30 Tenant income 5:31 Verification of Income and Assets 5:32 Certification 5:33 Tenant transfers 5:34 Income issues for rideshare drivers 5:35 Zero and sporadic income sources 5:36 Permanently unemployed vs. temporarily unemployed 5:37 Child support verifications 5:38 Gift income 5:39 Nonmonetary gift income 5:40 Foster care income 5:41 Rental real estate income 5:42 Tenants receiving cash payments (California only) 5:43 Distributions and withdrawals from retirement accounts 5:44 Annuities can be assets and income 5:45 Tenant receiving principal and interest payments on loan 5:46 Waiver of verification Assets less than $5,000 5:47 Property Management Assets Disposed of for Less Than Fair Market Value 5:48 Determining tenant income Income from assets 5:49 Property management Changes in tenant income or area median gross income Next-available-unit rule 5:50 Stipulations in the lease 5:51 General policy for income recertifications for mixed-income buildings 5:52 Ability to evict tenants xxii
TABLE OF CONTENTS 5:53 Mixed-income buildings with same bedroom sizes 5:54 Mixed-income buildings with different bedroom sizes 5:55 Step-by-step procedures to comply with the next-available-unit rule 5:56 Deep rent skewing set-aside 5:57 Low-income occupancy test 5:58 Nontransient occupancy 5:59 Suitable for occupancy 5:60 HUD UPCS 5:61 General public 5:62 Assigning affordable units 5:63 Assigning units and tax credits 5:64 Assigning units and fair housing 5:65 Assigning units and bonds 5:66 Manager s unit 5:67 Model units 5:68 Common areas 5:69 Community service facility 5:70 Vacant unit rule 5:71 Students 5:72 Acquisition/rehabilitation issues 5:73 Tenant income certification effective dates 5:74 Tax credits 5:75 Property Management Acquisition/rehabilitation issues Rent restriction during the 120-day grace period 5:76 Property management Acquisition/rehabilitation issues Income qualifying households before the beginning of the 10-year credit period 5:77 Testing for purposes of the next-available-unit rule 5:78 Testing for purposes of the next-available-unit rule-building definition 5:79 IRS Form 8823 Guide 5:80 State issues 5:81 Return of credits to state agency 5:82 Acquisition/rehabilitation First year qualified units 5:83 Switching utility allowances 5:84 Transient units 5:85 Citizenship status 5:86 Effect of Marital status on tenants 5:87 Changes in household size 5:88 Overcharging tenants 5:89 Increasing sample size of tenant files 5:90 Incomplete or imperfect documentation 5:91 Various 120-day rules 5:92 Correcting errors 5:93 Entire development out of compliance 5:94 Extended-Use Period 5:95 Managing Resyndicated LIHTC Properties 5:96 Eviction or Termination of Tenancy 5:97 Combining LIHTC and Section 8 5:98 Critical Documents for LIHTC Property Managers APPENDICES APPENDIX A. Section 42 xxiii
LOW-INCOME HOUSING TAX CREDIT HANDBOOK APPENDIX B. Treasury Regulations APPENDIX C. Joint Committee Report on the LIHTC and General Explanation Report on the LIHTC APPENDIX D. List of Internal Revenue Service Guidance on the LIHTC APPENDIX E. Important IRS Guidance and HUD Announcements APPENDIX F. Reference Material for the LIHTC APPENDIX G. Internal Revenue Forms APPENDIX H. List of Monthly Credit Percentages APPENDIX I. Applicable Federal Rates (AFRs) APPENDIX J. Table of Interest Rates for Tax Credit Recapture APPENDIX K. List of State Tax Credit Allocation Authorities APPENDIX L. NCSHA Recommended Practices and Sample Compliance Administrative Forms APPENDIX M. Qualified Census Tracts and Difficult to Develop Areas APPENDIX N. Tax Credit Utilization APPENDIX O. Sample LIHTC Agreements and Letters APPENDIX P. Due Diligence Checklist APPENDIX Q. Examples of Noncompliance APPENDIX R. Glossary APPENDIX S. Table of Cases APPENDIX T. Audit Technique Table of Laws and Rules Table of Cases Index xxiv